Summary: Mrs X complained the Council failed to provide the special educational provision set out in her child’s education, health and care plans, and handled her complaint poorly. Mrs X said there was an impact on her child of the missed education, and it caused unnecessary and avoidable distress and frustration. We find the Council at fault, and this caused injustice. The Council has agreed to make a payment to Mrs X to remedy the injustice caused.

The complaint

1. Mrs X complained the Council failed to provide the special educational provision set out in her child’s education, health and care plans. She also complained about the way the Council handled her complaint.
2. Mrs X said there was an impact on her child of the missed education, and an impact on the child’s and family’s mental health. She said it caused unnecessary and avoidable distress and frustration, and dealing with this was time-consuming.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

10. Mrs X complains the Council failed to provide the special educational provision set out in her child B’s EHC plan from February 2023 (when the plan was issued) to July 2023 (when B started at another school). However, Mrs X chose not to send B back to school in May 2023.
11. Mrs X said she would have sent B back to that school if the staff training (set out in the EHC plan) had been completed. Without that training, Mrs X felt the school was not a safe environment for B. Mrs X explained this to the Council. The Council accepted Mrs X had given a clear rationale for her decision.
12. We can only investigate what provision was being provided when a child is in school. I understand Mrs X’s reasons for taking B out of school. However, that does not mean I can investigate from May (when she took B out of school) to July (when B started at the other school).
13. For this reason, I have considered the special educational provision at the first school from February 2023 (when the EHC plan was issued) to May 2023 (when Mrs X chose not to send B back to school).
14. Mrs X also complains about the provision in place at the second school.
15. B started at the second school in July 2023, for a few weeks at the end of the summer term. B has attended the second school since then.
16. Mrs X appealed against the second school which was named in B’s EHC plan from February 2023.
17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
19. As Mrs X appealed against this second school, I cannot investigate the provision at this school while the appeal was ongoing. The appeal was concluded in December 2023 and the resulting amended EHC plan was issued in January 2024. I have therefore investigated the EHC plan provision in place at this school from January 2024 to July 2024 (the end of the summer term).
20. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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How I considered this complaint

21. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
22. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

23. A child or young person with special educational needs may have an education, health and care (EHC) plan. This document sets out the child’s needs and what arrangements should be made to meet them.
24. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135) 
25. There is a right of appeal to the SEND Tribunal against the description of a child or young person’s special educational needs, the special educational provision specified, the school or placement, or that no school or other placement is specified.

What happened

26. In February 2023, the Council issued an education, health and care (EHC) plan for Mrs X’s child, B. This was B’s first EHC plan. This named the school B was already attending and would keep attending for the rest of the academic year (School O), and also the school they would start in September (School P).
27. In March, Mrs X appealed against the second school (School P) named in the EHC plan.
28. In April, School O said it would arrange staff training.
29. In May, Mrs X chose not to send B back to School O.
30. In July, B started at School P.
31. Mrs X complained the Council. The Council refused her complaint because she had an ongoing appeal at the SEND Tribunal.
32. In November, Mrs X brought her complaint to the Ombudsman.
33. In December, the SEND Tribunal case finished. Mrs X complained again.
34. In January 2024, the Council responded to Mrs X’s complaint. The Council acknowledged that some of the provision in B’s EHC plan was not immediately implemented.
35. Also in January, the Council issued B’s second EHC plan after the Tribunal.
36. In March, the Council responded to Mrs X’s complaint at stage two. It apologised for the distress caused by delays getting the EHC plan provision in place.

Analysis

37. Mrs X complained the Council failed to provide the special educational provision set out in her child’s education, health and care plans. As there are two schools and two EHC plans involved here, I have set my findings out separately for each school.

Special educational provision at School O

38. I have considered the special educational provision in place between February 2023 (when the first EHC plan was issued) and May 2023 (when Mrs X chose not to send B back to School O). I have set out my reasons for the scope of this investigation above, in paragraphs 10 to 13.
39. The EHC plan in place while B was at School O was the first EHC plan, issued in February 2023.
40. This EHC plan says all adults working with B should have training in teaching children with autism and social, emotional, and mental health needs.
41. The Council acknowledges this training did not happen at School O. It said the school told the Council it would hold staff training in April, but this did not happen. It said the training was booked for June. I find this was too late. Mrs X had already decided the school was not a safe environment for B and did not sent B back to School O in May.
42. I find the Council at fault for failing to ensure this training was arranged and provided in line with B’s EHC plan. I find this caused Mrs X injustice in that it caused uncertainty. Mrs X said she was willing to send B back to School O if the staff were trained in line with the provision set out in the EHC plan. This training would have reassured her that B would be treated in a way that aligned with their needs.
43. I find the lack of training meant B missed out on provision that could have helped them remain at School O. This caused Mrs X unnecessary and avoidable distress and frustration.
44. The EHC plan also says an occupational therapist would complete a sensory assessment for B.
45. I have seen no evidence that an occupational therapist completed a sensory assessment for B while they were at School O. This is fault. This caused injustice because B missed out on provision that could have helped them remain at School O. This also caused Mrs X unnecessary and avoidable distress and frustration.
46. The Council apologised for delays arranging provision.

Special educational provision at School P

47. I have considered the special educational provision in place between January 2024 (when the second EHC plan was issued after the Tribunal) and July 2024 (the end of the summer term).
48. The Code says provision set out in EHC plans issued after Tribunal should be in place from the date the final amended EHC plan is issued. I therefore find the Council should have had the provision in place when it issued the final EHC plan in January 2024.
49. This EHC plan says all adults working with B should have training in teaching children with autism and social, emotional, and mental health needs. It sets out who should deliver the autism training and the social, emotional, and mental health training.
50. The autism training took place in early February, very shortly after the EHC plan was issued. I therefore find no fault here.
51. The social, emotional, and mental health training took place in May. This is a delay of three months (approximately one term) and is therefore fault. This caused injustice because it caused uncertainty and frustration.
52. The EHC plan says B would be assessed by an occupational therapist, B would work with that person to develop a sensory diet, and the occupational therapist would meet with school staff to hand over the sensory diet programme.
53. Mrs X has provided information from the occupational therapist. This shows they visited School P in March. They developed B’s sensory diet and shared it with the school in July.
54. I find a delay of two terms while the Council arranged an occupational therapist to visit the school and implement a sensory diet for B. This is fault. This caused B injustice because of the impact of two terms of lost provision.
55. The Council apologised for the delay in arranging provision in its complaint responses.

Complaint handling

56. Mrs X complained about the way the Council handled her complaint.
57. The Council initially refused Mrs X’s complaint because she had an ongoing Tribunal appeal at the time she complained. The Council answered her complaint in January and March 2024, after the Tribunal had concluded.
58. The part of Mrs X’s complaint about provision at School O was separable from her appeal to the Tribunal about School P. For this reason, I find the Council should have responded to Mrs X’s complaint in July 2023, when she made the complaint. The Council accepts that it should have identified that Mrs X’s complaint was separable from her appeal.
59. However, I recognise that it was a confusing situation where there was an appeal against an EHC plan that named two schools, but the appeal was only against one of those schools. I therefore understand the Council’s confusion, and its subsequent decision to refuse the complaint until the Tribunal had concluded.
60. Mrs X said the person she complained about (meaning, the head of the relevant department) issued the stage one complaint response. Mrs X said someone else should have written that complaint response because of her complaint against the officer.
61. I have seen Mrs X’s complaint. She does not reference or mention a complaint against any individual officer. Mrs X accepts this, and said she initially complained to that officer about the lack of provision. She said she did not name the officer in her complaint because she did not feel she needed to. As Mrs X did not complain about this officer, I do not find it was inappropriate for them to respond to her complaint.
62. The Council said it considered this officer should be given the opportunity to respond to the complaint and was best placed as the head of the relevant department. I agree. For this reason, I do not find the Council at fault.
63. The stage one complaint response did not signpost Mrs X to stage two of the Council’s complaints process. The Council recognises this response should have contained this information.
64. I do not find this error to be significant enough to constitute fault. In any event, it did not cause Mrs X injustice because it did not prevent or delay her complaint to the Ombudsman. This is because Mrs X had already complained to the Ombudsman when the Council issued the stage one response.
65. However, the Council said it will update its complaint letter templates to ensure complainants are signposted to the next stage of the process. This is positive.

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Agreed action

66. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £1900. This is made up as follows:
• £200 per term where staff received no training in teaching children with autism and social, emotional, and mental health needs; and,
• £200 per term of delay to, or lack of, occupational therapy assessment and sensory diet.
• Our published guidance on remedies suggests a payment of £900 to £2400 per term of missed educational provision. But this was not educational provision. This was teacher training and occupational therapy input. In arriving at £200 per term for each of these, I have taken into consideration the other provision B had available at both schools, the impact of these missed provisions, and that B could have returned to School O if the training been completed.
• There were two terms where staff at School O did not receive the relevant training. £200 per term multiplied by two terms is £400.
• There was no occupational therapy sensory assessment at School O for two terms. £200 per term multiplied by two terms is £400.
• There was a delay of one term arranging staff training at School P. £200 per term multiplied by one term is £200.
• There was a delay of two terms in arranging the occupational therapy assessment and getting the sensory diet. £200 per term multiplied by two terms is £400.
• I find a payment of £500 is an appropriate and proportionate amount for the level of unnecessary distress and frustration caused to Mrs X. Our guidance on remedies suggests a maximum payment of £500 for distress. In deciding that the maximum payment is appropriate and proportionate, I have taken into consideration the level of distress caused by the delays arranging provision at both schools, and Mrs X’s efforts to get the Council to implement the provision.
• These amounts added together is £1900.
67. The Council should provide us with evidence it has complied with the above action.

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Final decision

68. I have completed my investigation. I find the Council at fault, and this caused injustice. The Council has agreed to make a payment to Mrs X to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman